III. On Paternal Power

45. Paternal power is the complex of the rights of parents over children, which arise from a twofold cause: 1. because children have had life from them; 2. because parents must educate them fittingly. C. A. 147; C. L. 137. It is from Natural and Positive Law at once, natural law defining and determining it. For the rights of parents over children flow from natural and civil law.

46. By Natural Law piety is owed to parents, whether legitimate or illegitimate; namely to father and mother, and it belongs to them equally and perpetually as regards love and honor, but not as regards obedience after the son has become of age or has been emancipated. C. I. 220. Besides this, there belongs to parents power as regards those things which pertain to the spiritual salvation of the children. And this also belongs equally to each, indeed also to grandfather and grandmother. But if they dissent among themselves, he prevails who consults the salvation of the son. And, the father being dead, if the mother-tutrix and the paternal grandmother dissent, the latter will be preferable. Benedict XIV, Ep. Probe te, sect. 20, 21, 23; Ep. Postremo mense, sect. 16, 17; C. Ex litteris 2, de Convers. infid. - The natural power of parents in those things which pertain to the salvation of the soul, infancy having passed, is ended; in those things which pertain to the election of a state it is ended at puberty, C. Cum virum 12, de Regul.; C. A. 148; in those things which pertain to domestic care and discipline it is ended by emancipation. But in those things which regard the sustenance of the body and the generation of offspring, children are of their own right. And as regards entering marriage, commonly they are bound only to seek the counsel of parents. L. 325. - But emancipation is held naturally when the son of the family has already grown sufficiently by age, so that he himself can now be a father of a family, and duly consider by himself and bind himself concerning those things which pertain to his person and to his exterior goods. C. 11, 12 de Regul.; St. Thomas, 4 D. 27, q. 2, a. 2; D. 38, q. 1, a. 1, q. ult., sol. 3; 2.2, q. 104, a. 5; Suppl. q. 43, a. 2, q. 58, a. 5.

47. Paternal power is distinct from marital power: the former is exercised by father and mother together over the son; the latter by the husband over the wife. The former is concerned with the education and good of the children; the latter with the defense of the wife and the conjugal good. But each power is distinguished from the domestic power of the same father of the family and husband. For this latter is exercised over the whole house, over the wife, children, servants, and regards the right order of the whole family and the common good of that family, which, when sons remain in the paternal house, naturally extends also to their grandchildren and their wives.

48. "Abdication, which was employed according to the Greek custom for alienating children and was called apoceryxis, is not approved by Roman laws. Formerly to fathers the right of life over children and the power of death was permitted." LL. 6, 10, de Patr. pot. C. Yet in the old discipline, by civil law, and consequently also canon law, paternal power extended still very widely. For by this law it was entirely within the father's power to consign sons perpetually to sacred orders, or to any regular institute, CC. 2, 3, 4, 6, 7, Caus. 20, q. 1, and to join them in marriage to whomever he wished, C. 1, de Desp. impub. But in the twelfth century Celestine III gave to sons of families who had reached puberty the power of departing from a monastery, C. 14, de Regul.; then in the thirteenth century Boniface VIII gave the power of withdrawing from espousals entered by their parents, C. un., de Desp. impub. in 6.

49. By Common Law paternal power belongs to the father of the family alone, and of itself it was perpetual, Inst. l. 1, t. 9, sect. 2, 3; t. 12; lib. 1, tit. 6, ff. sect. 3-5; de Patr. pot. C. lib. 8, t. 46; C. 2, de Convers. infid. - But by the More Recent Laws it belongs also to the mother of the family, C. I. 220; C. G. 372; C. B. 1634, 1684, 1685; C. L. 138. But the mother does not use it as long as the father uses it, to whom it principally belongs, C. I. 46, 220, 230, 231; C. G. 141, 373, 507; C. A. 144, 147; C. H. 154; C. B. 1634; C. L. 139, 155. - It belongs, moreover, over legitimate and natural children, over acknowledged natural children, over acknowledged and legitimated natural children, and at least in some way also over adoptive children, C. I. 66, 184, 194, 210, 211, 220; C. H. 154; C. A. 183; C. B. 1306, 1757, 1765; C. L. 166. Paternal power is exercised by the father, and, when he is dead or absent, by the mother by equal right, C. I. 46, 220, 231; C. H. 154; C. G. 141, 390; C. A. 144, 147; C. B. 1627, 1684. Nevertheless the father, when dying, has the right to prescribe to the surviving mother what manner he wishes to be observed in the education of the children and the administration of goods, C. I. 235, 1059; cf. C. G. 391; C. B. 1852 seqq. If the mother enters second nuptials, it will be in the power of the family council, or of the pupillary judge, to permit or take away guardianship from her, C. I. 237; C. G. 395; C. A. 255. - When parents are lacking, and no tutor has been named, guardianship by law looks to the paternal grandfather; and, he lacking, to the maternal grandfather, C. I. 244; C. B. 1776. - Moreover paternal power is exercised partly over the persons, partly over the things of children, C. B. 1627.

50. Paternal Power is exercised 1. over persons by the faculty which the father has of retaining the son at home, unless the son wishes voluntarily to give his name to military service, C. I. 221; C. G. 374; by the faculty which the father has of moderately correcting and punishing a disorderly son; even of excluding him from his own house, and, by recurring even, where there is need, to a tribunal, of placing him in another house of education or correction, C. I. 222; C. H. 155, 156; C. G. 375 seqq.; C. A. 145; C. B. 1631, 1632; C. L. 143; L. 3 de Patr. pot. C. - Besides this, the son is prohibited without the consent of the parents from giving himself in adoption, C. I. 208, 224, 315, 330; C. G. 346; C. A. 181; C. B. 1747, and from entering marriage, C. I. 63, 208; C. G. 148; C. A. 49, 153; C. H. 1305; C. L. 1058. But when the mother dissents, the consent of the father suffices, C. I.; C. G. ll. cc.; C. L. 1061. To the parent last dying belongs the right of giving a tutor. C. I. 242; C. G. 397; C. B. 1777.

51. If a son of the family has not yet completed twenty-five years, a daughter of the family twenty-one years, they need the consent of the parents, or at least of the father, for contracting marriage. And, these being dead or impeded, it belongs to the grandfather to give consent to minors, and, he lacking, to the grandmother, whether paternal or maternal. These also lacking, there is need of the counsel of the family, if they are legitimate; of guardianship, if illegitimate. C. I. 63, 64, 65, 66.

52. Excepting marriage, which before puberty by canon law is null, as regards other acts and contracts minor children of families are bound naturally only, and, if in due time they do not seek restitution in integrum, also civilly; and those who contract with them are bound naturally and civilly. Wherefore, if they enter espousals, if they emit a vow, they are bound by the espousals and by the vow. If they have given anything, they transfer ownership to the one receiving; and if they themselves receive something by gift, they licitly acquire and retain ownership. C. 1, de Desp. impub.; C. I. 1304; C. G. 1314; C. H. 160, 161; C. A. 244, 246; C. B. 106; C. L. 98, 99; Inst. l. 3, t. 19, sect. 6; St. Thomas, 2.2, q. 88, a. 8, 4 D. 27, q. 2, a. 2; L. l. 3, n. 918; Lugo de Iust. d. 22, n. 228, 295, 300.

53. Non-emancipated minors cannot contract firmly without the assistance of a tutor, C. I. 277; C. G. 450; C. H. 262, 1263; C. A. 152; C. B. 106 seqq. But emancipated minors are capable of making acts of administration and contracts determined by law. For the remaining things the assistance of a curator is required, C. I. 317-319; C. G. 480, 484, 487; C. H. 317. In a matter of greater moment, however, tutor and curator depend on the authority of the family council, C. I. 277-301, 314 seqq.; C. G. 450, 468, 483; C. H. 269. From C. I. Comm. 9 seqq., emancipated minors, whether males or females, legitimately exercising commerce are deemed of age, and can alienate also their immovable goods. - Therefore, although a minor contracts validly, from the More Recent Laws he does not contract firmly if the various prescriptions of those laws are not observed, and then restitutio in integrum is granted to them, which has force also in the forum of conscience, since a law of this kind is definitive of right and just: since it is for protecting good morals, for the peace and good of families, for the common good. - C. G. 2012; C. I. 317, 319, 1899.

54. From C. I. the minor is restored because he is a minor, and an action of nullity is admitted: 1. If a non-emancipated minor carried out an act of himself without the intervention of the father or of his legitimate representative. 2. If an emancipated minor carried out of himself an act for which the law requires the assistance of a curator. 3. When the formalities established for certain acts by special dispositions of law are not observed. - But an action of nullity is not admitted: 1. If the minor by craft and fraud concealed his condition as a minor. 2. If there is question of an obligation arisen from a delict or quasi-delict. 3. If it is proved that what was paid was converted to the advantage and utility of the minor. - C. I. 1300, 1303, 1305, 1306, 1307, 1899.

From C. G. the minor is restored because he is injured, and an action of nullity is admitted if the prescriptions of law in contracts of minors have not been observed. Rescission is not admitted: 1. If the injury happened from a casual event. 2. If the minor exercises commerce or some art, as regards contracts entered by reason of his commerce or art. 3. If there is question of an obligation flowing from a delict or quasi-delict. 4. If it is proved that what was paid has yielded to their advantage and utility. - C. G. 1304, 1305, 1306, 1308, 1310, 1312, 2012; L. l. 3, n. 514, 918. Cf. Troplong, della Vendita, cap. 2, art. 1594, num. 166 seqq.

From C. H., the formalities of the law not having been kept, contracts of a minor become liable to rescission. But he is not held to restitution except insofar as he has become richer by the thing received. - C. H. 317, 420, 1163, 1304, 1764, 1765.

From C. L. the acts of a minor are null if they are done without due authority. But they cannot use this nullity as regards an obligation concerning things of their own art or profession, or if they use fraud, so that they may be had as of age. - C. L. 237 seqq.

From C. A., indeed generally a minor cannot validly be obligated without the consent of the father and other prescriptions of the law. Yet he can freely dispose of things acquired by his own industry, and other things given to him for his own use after attaining puberty. - C. A. 151, 152, 244, 246, 248.

From C. B., a minor needs the consent of his representative for any declaration of will, unless this procures for him a juridical advantage, or unless there is question of things left to his free disposition. Without the aforesaid consent of the representative, the act can be rescinded. - C. B. 108 seqq.

55. The power of the father is exercised 2. over the things of children. By Common Law a son at first was a thing of the father of the family: whatever he acquired belonged to the father. Then peculium was recognized. Peculium is any proper good of the son, separated from paternal goods. It is fourfold: 1. Castrense, acquired from military service or on the occasion of military service; and this whole thing, by perfect ownership, belongs to the son: nevertheless an impubes does not have its administration. - 2. Quasi-castrense, acquired from some civil office, of judge, advocate, physician, teacher, etc., from a benefice or ecclesiastical office; and the perfect ownership also of this belongs to the son; nevertheless the administration belongs to the father, if he himself is impubes. - 3. Adventitium, which comes to the son from elsewhere than paternal goods, nor by regard of the father, for example, what comes to the same son from his mother, from the maternal line, or by regard of the mother; or what is acquired by his own industry and labor, by the liberality of others, by chance and fortune. The dominion of property belongs to the son, the usufruct and administration of this peculium belong to the father, while he lives. Wherefore by Roman Law the father has the usufruct of all these goods of the son; and this usufruct is ended only by the death of the father, otherwise than is held by the More Recent Law. - 4. Profectitium, which either has been acquired from paternal goods, or has been given to the son by regard of the father. And this whole thing belongs to the father, as to property, usufruct, administration. - Inst. l. 2, t. 9, sect. 1, 2; l. 3, t. 29; Lugo d. 5, n. 23 seqq.

56. If the son trades outside the house of the father from goods other than paternal goods, the profit is adventitium. If he labors in the paternal house and is nourished by the father, or trades from the goods of the father, it is profectitium. - "If the son, with the money of the father either received as a loan, or secretly taken away, trades at his own risk, so that he seriously determines to preserve the father unharmed from it in any event, it is certain from the common sentence of all in Laymann, l. 3, tr. a, c. 8, n. 12, that all profit belongs to the property of the son as adventitious peculium. Why so? unless because, although all the profit he obtains by the money of the father, he so obtains it that the whole profit is derived not from the money of the father, barren of its own nature, but from the industry of the son, which makes the money fruitful." Ithur. Cas. 3, n. 6. - L. 488.

57. Therefore the son has perfect dominion, namely property, usufruct, and administration, of Castrense and Quasi-Castrense goods; wherefore concerning them he can dispose according to his own judgment, by donation, testament, and another contract, without any required consent of the father, provided he is pubes. An impubes does not have their administration; and by the authority of a judge he can dispose concerning them; L. Castrense 11, ff. de Castrensi peculio; L. 2, Cum multa 7, Cod. de Bonis quae liberis. But the reason is that it so conduces to the common good of the Republic, that a son of the family in goods acquired from some public office, just as in goods acquired from war, be of his own right and independent from parents, lest otherwise he be drawn back from service to the common good. Of adventitious goods the son has direct dominion or property, and thus, the father being dead, they belong to him alone: "lest what has come to him by his own labors or prosperous fortune should, by passing to another, proceed mournfully for him," sect. 1, Per quas person. nobis acquiritur, Inst.; but the father has the useful dominion, or usufruct, and administration while he lives. Dominion: "For thus nothing will be derogated from the parent possessing the usufruct of things, and the sons will not grieve when they see things possessed by them from their labors to be transferred to others, either strangers, or to their brothers, which also seems to many to be more grievous"; Administration: For "it is better to restrain youthful heats, lest, being given over to desire, they feel the sad outcome which awaits them after the patrimony has been scattered. For since... parents are compelled to feed them..., why do they desire to rush forth to the selling of their things?" L. fin. sect. Filiis autem de Bonis quae liberis C.; L. Cum oportet 6, C. eod. tit. Yet sometimes also the usufruct belongs to the son, for example if the usufruct were expressly given to the son, etc. Cf. Lugo, De Iust. et Iure, D. 5, S. 2, n. 23. But if the goods are consumable by use, the father can dispose of them once appraised, with the obligation of rendering the appraisal after the time of usufruct has passed; L. 1, ff. de Usufructu earum rerum quae usu consumuntur. Finally, of profectitious goods the total ownership and usufruct belong to the father alone. "For what envy is there, that what has profited from the occasion of the father should return to him?" sect. Sancitum Inst., Per quas personas nobis acquir. Wherefore concerning goods of this kind, profectitious goods, the son can alienate nothing without the consent of the father; L. 3, de Patr. pot.

58. The father of the family and the son of the family are held as one person. Therefore, since no one can contract with himself, if they contract, civilly the agreement is void. Civilly, for naturally they are mutually obligated and obligate. Inst. l. 3, t. 19, sect. 6. - A son of the family cannot make a testament, not even with the father consenting, concerning adventitious or profectitious peculium; but he can, even against the will of the father, concerning castrense or quasi-castrense. Inst. l. 2, t. 12.

59. From the More Recent Laws minors are held incapable by law of guarding themselves and their own goods. Hence, as regards each, he with whom paternal power is represents them. C. B. 1630; C. L. 98, 100. - The administration of all the goods of minor children is in the power of the father, or mother, or tutor, who must supply the incapacity or inexperience of the children until they become of age or obtain emancipation. From C. B. 1638; C. L. 147, goods given to the son with exclusion of the father from this administration are to be excepted. Cf. C. L. 146, 147. - Those of age are altogether free in managing their own affairs, unless in some case the law specifically forbids this to them; and thus they have full administration of their goods; but emancipated persons have it only limitedly. C. I. 323, 310 seqq.; C. G. 488, 476 seqq.; C. A. 149, 187, 251. Cf. C. L. 305 seqq., 311. - Hence he who exercises paternal power manages the affairs of the son, C. I. 224, 242; C. G. 389; C. A. 149, 152; he, not the son, acts in court, enters upon inheritances coming to the son, with an inventory made, accepts donations, C. I. 226, 1059; C. A. 205, 222 seqq., 243, and administers his goods, C. I. 224; C. G. 389; C. H. 159; C. A. 149; but he cannot alienate goods, whether immovable or movable, excepting those which by being kept cannot be preserved or become worse, nor obligate them by mortgage or pledge; nor likewise receive a loan in the name of the son, nor exercise other acts which exceed acts of simple administration, except from a cause of necessity or evident utility, and by decree of the civil tribunal, C. I. 224, 225; C. H. 164; C. G. 389; C. B. 1640 seqq.; C. L. 150.

60. The father, or the mother exercising paternal power, has the usufruct of those things which come to the son by succession, donation, or another lucrative title, C. I. 228, 229, 231; C. G. 384, 386; C. H. 160; C. B. 1640, 1685, unless the goods were left to the son by testament, or given by donation, on the condition that the usufruct not belong to the parents, C. I. 229; C. G. 387; C. B. 1651; or were left to the son by testament, or given by donation, for entering upon some course of life, art, or profession, C. I. 229; or for his education and instruction, C. H. 162; or unless, against the will of the parents, the son accepted a donation or legacy, or entered upon an inheritance, C. I. 229. Excluded also from that usufruct are those things which the son has acquired for himself by labor, profession, separate industry, C. I. 229; C. G. 387; C. B. 1620, 1651, and the goods of the son's succession, as to which the parents have been declared unworthy, C. I. 728; C. G. 730. - To this usufruct there inheres the obligation of feeding, sustaining, educating, and instructing the children. C. I. 230; C. G. 385; C. B. 1602, 1603, 1606, 1656; C. L. 148. - Neither father nor mother has the usufruct of the goods of natural children. They can only administer their goods, but with the burden of rendering an account also of the fruits; Gousset in a. 304; C. G.; C. I. 184. Cf. C. L. 166, 167.

From C. L. 145, 146, 147, to the parents belongs the usufruct of the goods which the son of the family acquires by his labor, his industry, his means, or by any other gratuitous title, unless they have been given with exclusion of this usufruct, or the sons acquire by arms, letters, liberal arts, or acquire by their own labor and industry, but live from themselves with the permission of the fathers.

From C. A. 149, 150, 151, 154, all goods, except administration, belong simply to the son; nevertheless the father can deduct from the revenues the expenses of education. - From C. H. 161, to the parents simply belong the goods acquired by children from the goods of the same parents. From the same C. H. 160, to the parent exercising paternal power belongs the usufruct also of those goods which the son has acquired by his own labor and industry.

61. Usufruct of this kind is ended by the emancipation of the son, or by death, or when minority or the legitimate age has been completed; when a widowed father or mother passes to other nuptials; if the father abuses paternal power, either by not caring for the imposed obligations, or by badly administering the goods, the sentence of the tribunal acceding; likewise it ceases with respect to a spouse by whose fault divorce has legally been pronounced. C. I. 156, 228, 232, 233; C. G. 384, 386; C. H. 167, 112; C. B. 1666, 1673, 1679, 1680. From the same C. B. 1661, 1962, usufruct also has an end by the marriage of the son and by the renunciation of the father. Cf. C. L. 149. - But when the son has become of age, those things which were done by the parents, if they were done according to law, remain ratified; but otherwise they can be made void by him. And, if meanwhile a conflict as regards goods should arise between father and son under paternal power, the latter will be able to have recourse to the tribunal. C. I. 224, 227, 2304; C. G. 1314; C. H. 165; C. A. 271; C. B. 1667, 1668; C. L. 153. - L. 488, 543, 544; Gousset 682.

From C. G. 384, 386, usufruct is granted to the father, and, when he is dead, to the mother remaining unmarried until the eighteenth year of the children or their emancipation.

62. Paternal power is dissolved by the death of the father or son, C. H. 167; C. L. 170; by the adoption of the son, C. H. 167; C. B. 1757, 1765; C. A. 183; by the emancipation of the son, C. I. 220, 311; C. G. 372, 476-479; C. L. 170; C. H. 167; C. A. 172, 252; moreover a son is emancipated by the law itself through marriage, C. I. 310; C. G. 476; C. L. 304; otherwise from C. A. 175. Emancipation is a legitimate act by which a father releases his minor son from his power, so that he may be made of his own right. Emancipation cannot be done before the eighteenth year, C. I. 311. - It is dissolved besides by greater age, C. I. 220; C. G. 372; C. A. 172; C. L. 170. Cf. here n. 24. From C. B. 386, which does not admit emancipation, a declaration of majority can be had in the eighteenth year of age. - It is also dissolved if the father abuses paternal power, with a criminal sentence acceding, C. I. Poen. 392; C. H. 171; C. B. 1666, 1680; C. A. 177, 178. Paternal power ought to consist in piety, not in atrocity. - If the surviving parent is the mother, she does not simply lose it, although she passes to other nuptials. Nevertheless in this case from C. I. 237 she can be removed from the administration of the son's goods. From C. B. 1697, a mother passing to other nuptials loses paternal power in part. Cf. C. L. 155 seqq. - When parents are interdicted, furious, or insane, their paternal power remains suspended, C. I. 220, 229 seqq.; C. A. 179; C. L. 168; C. B. 1676 seqq. - Paternal power having been dissolved, the son of the family is made of his own right. But whether he is of his own right, or whether he is still subject to paternal power, he can validly contract with the father of the family himself, and from the eighteenth year of age he can make a testament, C. I. 763, 1107; C. A. 271, 569; from the sixteenth year, but limitedly, C. G. 903, 904. - Inst. l. 1, t. 12.

63. Can a son of the family retain profits which come to him from his own labor, but not from separate industry, in the paternal house? - Many and grave theologians deny it. The reason is that then the son of the family laboring is not considered to act in his own name, but as a member of the family, and thus every profit ought to yield to the good of the family. Besides, positive law does not favor him, but is altogether opposed to him. Many and grave theologians also affirm it. The reason is that the son is not of worse condition than a servant; therefore there ought to yield to the son at least the wage which would be owed to a servant or outside person laboring. Certainly that would be owed to the son if from his condition he is not bound to labor, and he supplies the place of an outside person, or if he spends extraordinary and wholly undue labor in the paternal house. C. L. 144. Nor indeed in these two cases does positive law seem to stand in the way, since they are extraordinary, and, by legitimate epikeia, are not comprehended in positive Law, which regards cases commonly occurring. But then the expenses which the father made in feeding, sustaining, educating him, etc., must always be deducted. For he was not bound to make them for a son able and willing to gain profit. - Inst. l. 2, tit. 9; L. tr. 3, n. 488, 544, 910; St. Thomas, 2.2, q. 57, a. 4; Ithur. Cas. 3; Gousset 683, 684, 991.

64. Does the son have perfect ownership in movable goods given to him by parents or cognates? - R. Affirmatively, if they are consumable by first use, because they are given absolutely to him for use, unless perhaps some restriction had been added, as if it were money for buying books, for paying board, etc. - "If they are not consumable by first use, as books, garments, etc., the son generally has only useful ownership, because parents for the most part intend to confer nothing else on him." Thus Gury, 546. Yet it seems rather that it must be said that, by the very fact that children can by continuous use consume and destroy these things for their own utility, they have also direct ownership of these things, although perhaps restricted and not altogether absolute, insofar as, according to the mind of the giver, the thing is to be wholly converted only to their utility, as, for example, is to be seen in books, garments, etc.

65. Is a son considered to renounce the usufruct to which he has a right, if, while he sees and is silent, the father receives this usufruct? - R. Negatively, at least speaking generally. The reason is that silence would be equivalent to renunciation only insofar as the son could easily protest. But now, that he can easily do this, reverential fear for the most part stands in the way. - From C. I. 234, if, when the usufruct has ceased, the parents still continue to receive it, while the son remains with them, and without a condition of rendering an account having been established, the parents or their heirs are held only to the fruits existing from the day on which they are demanded.